Posted by: Carlos Tome & filed under Buying Property in Portugal.

A buyer was represented in the purchase by a representative who, prior to the deed, visited the house and found that one of the rooms with a glazed marquee had dampness near the windows. The seller justified himself with works carried out by a neighbour that had caused damage to a window, through which water had entered the marquee and assured that the neighbour had acknowledged responsibility for what happened and that repairs to the window had been carried out.

After the deed, infiltrations and damage to the pavement of the marquee appeared again, and an inspection concluded that the infiltrations were related to inadequate waterproofing of the marquee. The buyer asked the seller to repair the defects and assume the damages, which he refused to do.

The court considered that if the buyer accepts the house with the defect, he should not be able to later claim that he was delivered a defective item in accordance with the principle of good faith. However, the purchaser cannot invoke the defect unless he was clearly aware of it, that is, if he was aware of the defect in its entirety and not just in part of its extent or its consequences. The aim is to avoid that the buyer can then act contrary to what he had expressed, but in which the assumptions remain. For example, if the buyer recognizes that the roof lacks tiles through which water enters and accepts this situation, he cannot later ask the seller to be held responsible for the same tiles missing and for water entering that place, under penalty of violating the trust that the buyer had instilled in the seller and that he even determined that he should proceed with the sale and then, unjustifiably, break that trust, changing his position. But if it turns out that after all there are other tiles missing which, because they are not in a visible place, the buyer could not see and water could also get in there, he is not prevented from invoking the defect for this last situation. In this case, the purchaser was not an enlightened purchaser nor had he commented on such a vicissitude. Or else, the buyer envisions that there may be a less regular situation and, for not detecting, with the naked eye, the cause of this situation and for having been given an explanation that may have a minimum of appropriateness, he ends up accepting that there is no defect but later, and after the purchase, it comes to discover the scope of what happened and what the defect was. In this case, either because the buyer ends up not seeing the defect (but eventually only a part of its consequence) and because he was given an explanation that turns out to be not correct, this is not an apparent defect that was seen (or could be) by the buyer.

In the case under consideration before the deed, there were signs of moisture entering the premises: near the window, floor with water, smell of damp, infiltrations in the walls and, on the other hand, at least one explanation from the seller Defendant (neighbour who had broken the window for where water entered). Now, if it is true that the signs are potentially revealing that there is a problem with the area in question regarding water/humidity infiltration, it is also true that, on the one hand, these signs are not totally exclusive of the explanations given by the seller and, on the other hand, the real extent of water infiltration is unknown. It is not known how much water was infiltrated because it would be hidden under the floor and behind the stone that covered the wall. When the buyer’s agent raised doubts, the seller had to clarify the situation and he did so, providing a justification. And, eventually, for a less experienced buyer, it can be convincing: water got in because a window broke and accumulated, adding that it is mentioned that the neighbour responsible for this situation would have taken over the repair. If the buyer accepts this explanation, this does not mean that he has accepted a defect in an enlightened way, since, from the outset, it is not apparent in its entirety, since it would be necessary to inquire if the water entered from some other place, mainly from the outside or from the inside, running down the windows, directly or indirectly, falling to the floor. What the buyer (through his representative) knew was that there were traces of water and a damp smell, but he could not know what was going on behind the ornamental stone or on the outside, requiring the removal and/or analysis of these places. On the other hand, the seller’s explanation, which may be true, turns out not to be true and ends up having a situation in which the buyer of a property acquires it, seeing only part of the problem, and with an unsubstantiated explanation given by the seller, which cannot, in the opinion of the Court, means that there is an informed recognition of a defect that can no longer be invoked later.
The Court thus concludes that there is a hidden defect and that the seller is obliged to repair the defects found and to pay compensation.

This post is also available in: Português Français